Federal Trade Commission v. Directv, Inc. et al

Northern District of California, cand-4:2015-cv-01129

Declaration of Jacob Snow in Support of Federal Trade Commissions Reply in Support of Motion for Sanctions Under Rule 37(e)(1)

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1 Eric D. Edmondson, D.C. Bar No. 450294 Erika Wodinsky, Cal. Bar No. 091700 2 Boris Yankilovich, Cal. Bar No. 257887 Jacob A. Snow, Cal. Bar No. 270988 3 901 Market Street, Suite 570, San Francisco, CA 94103 (415) 848-5100/(415) 848-5184 (fax) 4 eedmondson@ftc.gov; ewodinsky@ftc.gov; byankilovich@ftc.gov; jsnow@ftc.gov 5 Raymond E. McKown, Cal. Bar No. 150975 6 Stacy Procter, Cal. Bar No. 221078 Kenneth H. Abbe, Cal. Bar No. 172416 7 10877 Wilshire Blvd., Suite 700, Los Angeles, CA 90024 (310) 824-4343/(310) 824-4380 (fax) 8 rmckown@ftc.gov; sprocter@ftc.gov; kabbe@ftc.gov 9 Attorneys for Plaintiff Federal Trade Commission 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 FEDERAL TRADE COMMISSION, Case No. 15-cv-01129-HSG 15 Plaintiff, DECLARATION OF JACOB SNOW IN 16 v. SUPPORT OF FEDERAL TRADE DIRECTV, a corporation, and COMMISSION'S REPLY IN SUPPORT 17 OF MOTION FOR SANCTIONS UNDER DIRECTV, LLC, a limited liability company, RULE 37(e)(1) 18 Defendants. 19 20 21 22 23 24 25 26 27 28 DECL. OF JACOB SNOW ISO FTC'S REPLY ISO MOTION FOR SANCTIONS UNDER RULE 37(e)(1) CASE NO. 15-CV-01129-HSG 1 1. I am an attorney for the plaintiff Federal Trade Commission ("FTC") in this 2 matter. I submit this declaration in support of the FTC's reply brief in support of its motion for 3 sanctions under Federal Rule of Civil Procedure 37(e)(1), filed concurrently with this 4 declaration. Unless stated otherwise, I make this declaration based on my own personal 5 knowledge, and if called as a witness, I could and would testify competently as follows. 6 2. Attached as Exhibit A is a true and correct copy of an excerpt of the transcript of 7 the deposition of Audrey Chen, conducted in this matter on July 15, 2016. I spoke with Ryan 8 Sandrock, counsel for DIRECTV, by telephone on December 7, 2016. Mr. Sandrock confirmed 9 that DIRECTV would agree to remove the confidentiality designation associated with the 10 unredacted portions of the attached excerpt (i.e., page 170:13 through 172:4). 11 3. The declaration of Chad Hummel, filed in support of DIRECTV's opposition to 12 the FTC's motion for sanctions ("Hummel Decl."), references a series of documents that Mr. 13 Hummel describes as "Power Point [sic] presentations that were produced to the FTC refer[ing] 14 to A/B testing." Hummel Decl. ¶ 21. Mr. Hummel's declaration references the following 15 documents by Bates number in a footnote: FTC-CONVERGEDIRECT-000853, FTC- 16 CONVERGEDIRECT-001013, FTC-CONVERGEDIRECT-001024, FTC- 17 CONVERGEDIRECT-001026, FTC-CONVERGEDIRECT-001152, FTC- 18 CONVERGEDIRECT-001163, FTC-CONVERGEDIRECT-001166, FTC- 19 CONVERGEDIRECT-001181, FTC-CONVERGEDIRECT-001215. Id. ¶ 21, n 1. 20 4. On December 6, 2016, I contacted Mr. Hummel by email and requested that 21 Converge Direct (the third party that produced the documents) agree to remove the 22 confidentiality designation associated with the documents. Mr. Hummel refused to remove the 23 confidentiality designation. 24 5. I have reviewed the documents referenced in the Hummel Declaration ¶ 21, n.1. 25 Based on my review, it appears that these documents concern DIRECTV advertisements in print 26 form. They do not appear to relate to or reference any advertisement delivered through an 27 Internet website. Further, the A/B tests the documents reference appear to be tests performed on 28 DECL. OF JACOB SNOW ISO FTC'S REPLY ISO MOTION FOR SANCTIONS UNDER RULE 37(e)(1) CASE NO. 15-CV-01129-HSG 1 1 print advertisements for DIRECTV, not A/B tests performed on DIRECTV's website or any 2 web-based advertisement. 3 6. I provide the following explanation to help clarify where relevant material to the 4 FTC's motion has been filed with the Court. The Wind Report (excluding exhibits) was filed 5 under seal by DIRECTV as Docket No. 188-22 (as an exhibit to an administrative motion to file 6 under seal) and as part of Docket No. 189-14 (as exhibits to a Declaration by Dr. Jerry Wind). 7 Exhibit 2 to the Wind Report (laying out the Convergys methodology and results) was filed 8 under seal by DIRECTV as Docket No. 188-23 (as an exhibit to an administrative motion to file 9 under seal) and as part of Docket No. 189-14 (as exhibits to a Declaration by Dr. Jerry Wind). 10 Exhibit 3 to the Wind Report appears substantively identical to Exhibits A and B to the Leever 11 Declaration, which was filed publicly by DIRECTV as Docket Nos. 53-4, 53-5, and 53-6. 12 7. On December 23, 2015, I sent an email to Chad Hummel regarding the FTC's 13 outstanding request for DIRECTV to produce web-analytics data in response to the FTC's 14 Request for Production No. 10. My email included a proposal for DIRECTV to provide the FTC 15 with access to its analytics platform. DIRECTV refused to provide the FTC with access to the 16 analytics platform as I proposed. A true and correct copy of my email to Mr. Hummel dated 17 January 7, 2016, which includes my original email dated December 23, 2015, is attached to this 18 declaration as Exhibit B. 19 8. On June 14, 2016, I sent another email to Chad Hummel regarding DIRECTV's 20 production of web-analytics data in response to the FTC's Request for Production No. 10. My 21 email dated June 14, 2016 identified particular categories of documents for DIRECTV to 22 produce. On June 15, 2016, Mr. Hummel responded and did not agree to produce the proposed 23 categories of documents. A true and correct copy of Mr. Hummel's email dated June 15, 2016, 24 which includes my original email dated June 14, 2016, is attached to this declaration as 25 Exhibit C. 26 9. On July 24, 2016, I sent counsel for DIRECTV an email regarding information 27 disclosed for the first time in Audrey Chen's deposition (which took place on July 15, 2016). 28 My email included a request for particular categories of documents for DIRECTV to produce. A DECL. OF JACOB SNOW ISO FTC'S REPLY ISO MOTION FOR SANCTIONS UNDER RULE 37(e)(1) CASE NO. 15-CV-01129-HSG 2 1 true and correct copy of my email dated July 24, 2016 is attached to this declaration as 2 Exhibit D. 3 10. I declare under penalty of perjury that the foregoing statements are true and 4 correct. Executed in San Francisco on December 7, 2016. 5 6 /s/ Jacob A. Snow 7 Jacob A. Snow 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECL. OF JACOB SNOW ISO FTC'S REPLY ISO MOTION FOR SANCTIONS UNDER RULE 37(e)(1) CASE NO. 15-CV-01129-HSG 3